06-3113. Operating Limitations at Chicago O'Hare International Airport

ACTION:

Notice of order.

SUMMARY:

On March 13, 2006, the Federal Aviation Administration (FAA) issued an order to show cause, soliciting written views on extending through October 28, 2006, the August 2004 order limiting scheduled operations at O'Hare International Airport (O'Hare). The August 2004 order made effective a series of schedule adjustments that air carriers individually agreed to during a scheduling reduction meeting convened under 49 U.S.C. 41722. The FAA previously extended the order twice, most recently through April 1, 2006. After careful reflection on the written views submitted in this matter, the FAA is now extending the August 2004 order through October 28, 2006, but reserves the right to terminate the August 2004 order before that date if a final rule on congestion and delay reduction at O'Hare earlier takes effect.

FOR FURTHER INFORMATION CONTACT:

Gerry Shakley, System Operations Services, Air Traffic Organization; Telephone: (202) 267-9424; E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Order to Show Cause

Third Order Extending the August 2004 Limitation of Scheduled Operations at O'Hare International Airport

On March 13, 2006, the Federal Aviation Administration (FAA) issued an order to show cause, soliciting written views on extending through October 28, 2006, the August 2004 order limiting scheduled operations at O'Hare International Airport (O'Hare).^[1] The August 2004 order made effective a series of schedule adjustments that air carriers individually agreed to during a scheduling reduction meeting convened under 49 U.S.C. 41722. The FAA previously extended the order twice, most recently through April 1, 2006. After careful reflection on the written views submitted in this matter, the FAA is now extending the August 2004 order through October 28, 2006, but reserves the right to terminate the August 2004 order before that date if a final rule on congestion and delay reduction at O'Hare earlier takes effect.

The FAA is taking this action to ensure that congestion and delay at O'Hare remain at manageable levels through the upcoming summer scheduling season while the agency finalizes a more detailed rule that will likewise reduce congestion and delay at O'Hare. The FAA has separately received written comments on a proposed rule that would limit scheduled arrivals at O'Hare and establish allocation, transfer, and other procedures not included in the August 2004 order.^[2] The FAA intends to publish a final rule in that proceeding as promptly as possible; however, it is not possible to make such a rule effective before the August 2004 order's previously scheduled expiration.

The FAA's authority to extend the August 2004 order is the same authority cited in that order. The FAA proposed to extend the August 2004 order under the agency's broad authority in 49 U.S.C. 40103(b) to regulate the use of the navigable airspace of the United States. This provision authorizes the FAA to develop plans and policy for the use of navigable airspace and, by order or rule, to regulate the use of the airspace as necessary to ensure its efficient use. In addition, 49 U.S.C. 41722 authorizes the FAA to conduct scheduling reduction meetings. The FAA's authority under section 41722 to negotiate and implement schedule reductions would be unworkable if the FAA lacked the related authority to capture and to administer voluntary schedule reductions in FAA orders.

Discussion of the Written Submissions

A total of eight respondents filed written views on the FAA's proposed extension of the August 2004 order. The respondents included two air carriers (American Airlines and United Airlines), one airport organization (Airports Council International—North America), the City of Chicago (City), and four private individuals. Neither of the air carrier respondents opposed the extension of the August 2004 order through October 28, 2006.

As the operator of O'Hare, the City registers its preference that the FAA allow the August 2004 order to expire. Echoing the views that the City expressed before the FAA's prior extension of the August 2004 order, the City repeats that technological and procedural developments have rendered obsolete the limitations in the August 2004 order. According to the City, the air carriers serving O'Hare have learned from past overscheduling experience and are unlikely to repeat it in the absence of scheduling limits; nevertheless, if debilitating congestion and delay return to O'Hare, the City asserts that it might create market-based incentives to discourage overscheduling or that the FAA may convene another scheduling reduction meeting where the FAA may negotiate and impose a new order.^[3]

As the FAA found when it last extended the August 2004 order, the recent air traffic procedural improvements and equipment upgrades that the City identifies will not increase O'Hare's capacity so significantly that intolerable delay will not recur if the FAA allowed the August 2004 order to expire as now scheduled. In the absence of the negotiated schedules set forth in the August 2004 order, experience leaves little doubt that O'Hare would return to the peak-hour congestion and intolerable delay that prevailed before the August 2004 order took effect. The performance at O'Hare historically declines in the late afternoon and evening hours, when demand at the airport and in the National Airspace System is at its highest and the impact of convective and other weather adverse to aviation is greatest. The addition of even a few new flights or the shifting of existing flights into the peak period could increase O'Hare's delays exponentially. Because the FAA currently approves a number of exchanges among air carriers in order to maintain the status quo, we have a clear sense of the air carriers' inclinations if the August 2004 order were to expire before a rule took effect, and our experience reflects a strong likelihood that schedule peaking would return absent the August 2004 order's scheduling limits. Accordingly, as expressed in the written views of United Airlines, the single biggest user of O'Hare's capacity, the risk of resumed overscheduling and congestion-related delay at O'Hare if the August 2004 order were to expire on April 1, 2006, is “very real.”

The FAA agrees with the City that capacity increases, not schedule reductions or other restrictions on demand, are the preferred means of curtailing congestion-related delay. Toward this end, the City has embarked on an O'Hare Modernization Program that would significantly increase O'Hare's capacity. However, the City does not expect to realize capacity increases from that project while the August 2004 order is in effect, even as extended through October 28, 2006. Rather than impose on air carriers and passengers the harmful instability of successive expiration and reinstitution of voluntary schedule reductions at O'Hare, the FAA will extend the August 2004 order beyond April 1, 2006, as specified in this order.

Anticipating that the FAA would extend the August 2004 order, the City alternatively asks the FAA to increase from eighty-eight to ninety-two per hour the number of peak-hour arrival authorizations that the August 2004 order permits and to reallocate via lottery the ten arrival authorizations assigned to Independence Air before it ceased operations on January 6, 2006. The Airports Council International—North America echoes these views of the City.

With respect to the City's request to increase the number of peak-hour arrival authorizations, the FAA notes that the City previously raised a similar request and that the FAA previously explained why it is ill-advised to increase the number of peak-hour arrival authorizations in the context of extending the voluntary scheduling reduction order.^[4] The City cites several recent operational changes at O'Hare to support an upward change in the prescribed hourly limits. In the order in which the City raises them: (1) The implementation of runway usage Hybrid Plan B; (2) implementation of Domestic Reduced Vertical Separation Minima (DRVSM) between Flight Levels 290 and 410; (3) reclassification of certain MD-80-series aircraft that would enable their use of land and hold short operations (LAHSO) procedures at O'Hare under additional runway configurations; and (4) new Category II/III approaches to Runways 27 Left and 27 Right.

Our analysis indicates that the average airport acceptance rate has not materially changed since the FAA addressed the City's similar arguments to increase the hourly limits in March 2005. In the case of the MD-80 LAHSO-related changes, which are also integral to Hybrid Plan B, there has not been any significant increase in the use of the permitted LAHSO procedures by air carriers to date, so potential capacity gains have not materialized. Although we are optimistic that those gains will materialize in the future, it is premature at this time to base an operational increase on those projections. DVRSM has increased high altitude flight options and the operational flexibility of the system, as the City notes. While en route capacity is important, the constraints at O'Hare are primarily driven by terminal airspace and runway limits. The ability to conduct Category II/III approaches on Runways 27 Left and 27 Right reduces overall aircraft delay and the number of flight cancellations experienced at O'Hare during inclement or poor weather conditions. At present, however, the FAA must continue to monitor the effect of these operational initiatives to assess their practical effect on scheduling limits.

With regard to the ten arrival authorizations previously operated by Independence Air, the FAA explained in the March 13 show cause order why those arrival authorizations are not excess capacity. Independence Air ceased all operations on January 6, and because arrival authorizations cannot be sold, leased, or transferred except on a one-for-one basis under the August 2004 order,^[5] they have been dormant since that date. The FAA does not consider the Independence Air arrival authorizations to be excess capacity, because when negotiating schedule reductions in anticipation of the August 2004 order, the FAA had to allocate arrival authorizations in some peak afternoon and evening hours at levels that exceed the peak-hour target of eighty-eight scheduled arrivals per hour. The Independence Air arrival authorizations, particularly in the peak afternoon and evening hours, if unused, would help to offset these periods of continued scheduling over the operational target.

Despite the fact that some peak afternoon and evening hours continue to exceed our preferred scheduling limits, the City and the Airports Council International—North America assert that the FAA should reallocate Independence Air's arrival authorizations to other air carriers. However, the August 2004 order does not contain a usage requirement that would require Independence Air or any other air carrier to surrender any arrival authorization after a period of non-use.^[6] In addition, the August 2004 order lacks an agreed upon reallocation mechanism for any arrival authorization that might be voluntarily surrendered. By contrast, the pending rulemaking to reduce congestion and delay at O'Hare includes proposed use-or-lose standards and allocation procedures that, if adopted, could permit the allocation of unused and underutilized arrivals.

Therefore, in order to permit the FAA the flexibility to recover unused arrival authorizations and to reallocate them if appropriate, the FAA reserves the right to terminate the August 2004 order before October 28, 2006, to coincide with an earlier date on which the final rule might take effect. At the same time, the FAA is cognizant of the scheduling practicalities and seasonal scheduling changes that are endemic to air carrier operations, and in considering whether to terminate early the August 2004 order, the FAA will primarily consider the potential operational burden such a decision might have.

The City also asks the FAA to modify the August 2004 order to forgo all limitations on international operations at O'Hare. The City previously raised this issue at several junctures in this docket, and the FAA addressed the matter in detail when extending the August 2004 order in March 2005.^[7] The City also filed similar comments in the public docket associated with the related rulemaking proceeding, which is a forum more suited to addressing the policy questions that the City raises. Because the present proceeding is limited to the contemplated short-term extension of the August 2004 order, and because the FAA will address the merits of the City's comments in the rulemaking process, the FAA declines to alter the August 2004 order as the City requests at this time.

Conclusion

The FAA proposed to extend the August 2004 order through October 28, 2006, on the basis of its tentative finding that such an extension is necessary to prevent a recurrence of overscheduling at O'Hare. After considering the responses, the FAA has determined to make this finding final and to extend the order through October 28, 2006, reserving the right to terminate the August 2004 order earlier if a final rule on congestion and delay reduction at O'Hare takes effect before October 28, 2006.

Accordingly, with respect to scheduled flight operations at O'Hare, it is ordered that:

1. Ordering paragraph seven of the FAA's August 18, 2004, order limiting scheduled operations at O'Hare International Airport is amended to state that the order shall expire at 9 p.m. on October 28, 2006, unless earlier terminated by the Administrator.

Issued in Washington, DC, on March 27, 2006.

Joseph A. Conte,

Acting Assistant Chief Counsel, Regulations Division.

Footnotes

1.  71 FR 13668 (Mar. 16, 2006).

2.  70 FR 15520 (Mar. 25, 2005).

3.  The City also repeats an assertion that the FAA lacks the statutory authority to extend the August 2004 order. We addressed the City's argument in the context of previously extending the August 2004 order, and the rationale expressed there continues to apply. Oct. 2, 2005, Order at 4-5.

4.  Mar. 21, 2005, Order at 5-8.

5.  Aug. 18, 2004, Order at 43-44 (ordering paragraph six).

6.  Aug. 18, 2004, Order at 35-36.

7.  Mar. 21, 2005, Order at 9-10.